Ms Mustard, with the iPhone in the surgery…

Is that a digital recorder I can see in your pocket?

What to do when faced with a patient or family member who wants to record your consultation or complaint review meeting? What happens if it’s done without your knowledge? Are clinicians exposed to risk? Do you have to accede if asked?  An increasingly common issue in the digital age often not given much thought these days. But hold on. A recent case makes some interesting observations. Whilst not directly involving NHS care, the case of Ms Mustard and her secret recordings has thrown up judicial comment worthy of note and further thought.

Covert recordings: are they admissible evidence?

Yes – in short. A recent decision of the High Court has confirmed that covert recordings are not unlawful and admissible in evidence. But the context is important.

The case concerned a personal injury claim brought by Samantha Mustard following a road traffic accident. Ms Mustard (the claimant) was examined by a number of the insurers’ medical experts and she covertly recorded two of those consultations deliberately and a third accidentally. Strong objection was taken to the covert recordings and the defendant insurers objected to the claimant submitting those recordings in evidence to support her claim.

The court decided to admit the recordings in evidence, rejecting the defendant’s argument that it breached the Data Protection Act or the General Data Protection Regulation. The court ruled that “Article 2(c) of the GDPR provides that the Regulation does not apply to the processing of personal data ‘by a natural person in the course of a purely personal… activity’”. It went on to say that recording a consultation with or examination by a doctor would seem to fall into this category. And it added that the court did not think that the claimant supplying the recordings to her advisers took it out of the category. It also pointed out that the relevant data related to the claimant and not the examining doctor.

The decision also points to both the Act and the Regulation containing exceptions or “carve-outs” for data which is gathered or processed or disclosed for the purposes of exercising or defending legal rights.

So, while some readers might find Ms Mustard’s actions lacking courtesy and transparency, covert recording has become a fact of professional life, said the court. It did not think that the “covert recordings were so reprehensible as to outweigh other considerations…The claimant acted on the advice of her solicitor and her motives were, in the context of adversarial litigation, understandable.”

There we have it. No change in the case law since our new data protection Act and GDPR. But for those of you seeking a refresh on the rules around accessing and sharing patient information and confidentiality, the House of Commons has produced a briefing paper which you can read here.

Interestingly, the court did comment that the “sooner” there can be some protocol agreed between the Association of Personal Injury Lawyers and the Forum of Insurance Lawyers which governs the recording of medico-legal examinations “the better”.

Time to re-visit recordings?

But the issue of tape recording discussions with clinicians is not a new concept. It was one of the recommendations made following the 2001 Bristol Public Inquiry but was not accepted nationally and, not implemented by the hospital Trust. The issue of recording was again raised in the 2016 Report of the Independent Review of Children's Cardiac Services in Bristol given how technology had moved on and the ease with which recordings can now be made. Perhaps it is time to re-visit the recommendation about recordings made in 2001. 

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